Expert Testimony Central to Coffee Class Decision

Reprinted with permission.

IMS
ExpertServices periodically sends me e-mails that highlight recent key court cases that can significantly
affect the effectiveness of expert testimony, both for the plaintiff and for the defendant. You need only scan
the headlines I post daily to know the importance of effective legal representation when intellectual property
(IP) is being contested.

This article by
Joshua
Fruchter, writing for
IMS ExpertServices, addresses a fundamental aspect of engineering for a large percentage of practitioners,
including yours truly. Accordingly, it warrants reprinting (with permission) here
on RF Cafe. Obviously, barrister Fruchter is an appreciator of the energizing elixir, and therefore a kindred
spirit. It just goes to show that lawyers are people, too ;-)

Joshua Fruchter, Esq. is a member of the New York Bar Association, and a former attorney at a large NYC
firm. He is currently the principal of eLawMarketing,
a leading provider, since 2002, of website development, email marketing, blogging, search engine optimization
(SEO), and social media services to law firms of all sizes. A graduate of NYU School of Law, Joshua combines
his legal background and marketing technology expertise to help law firms generate leads and business from
Internet marketing. Joshua has published articles on legal marketing technologies in numerous law-related
periodicals, and has presented on legal marketing technologies before various bar and legal marketing associations.
Joshua is also the editor of LawyerCasting, a blog covering "best practices" in online marketing for lawyers
and law firms.

If you love coffee (or loved the Seinfeld
episode in which Kramer sues Java World), then this case is for you – a 7th Circuit decision reversing a denial
of class certification in an action by coffee drinkers against a manufacturer that allegedly violated consumer
protection laws in its efforts to gain a foothold in the K-Cup market. Suchanek v. Sturm Foods, Inc., 2014 WL
4116493 (10th Cir., August 22, 2014).

As readers are undoubtedly aware, K-Cups are pods filled with coffee grounds that can be dropped into Keurig
coffee machines to quickly produce a high quality cup of fresh-brewed coffee. For many years, Keurig held
a patent over the filtering technology used in K-Cups, thereby barring competitors from selling their own Keurig-compatible
pods. Anticipating the expiration of Keurig's K-Cup patents in 2012, the defendants hatched a plan to gain first
mover advantage in the post-patent K-Cup market.

The centerpiece of the strategy was a pod (branded "Grove Square Coffee" or "GSC") introduced by the defendants
in 2010 that mimicked the K-Cup design. Except that to avoid infringing Keurig's still-valid patent, the GSC pods
lacked a filter, thereby making the use of fresh coffee grounds impossible. Instead, the defendants filled their
pods primarily with "instant" coffee (for readers unfamiliar with the difference between "instant" coffee and
coffee grounds, the former quickly dissolves in hot water (and costs less), while the latter must be "brewed"
(and costs more due to perceptions of higher quality);
see Wikipedia for further details).

Defendants' packaging glossed over the crucial distinction between the innards of their GSC pods versus Keurig's
pods, featuring images of K-Cups and fresh roasted coffee beans, and stating that the GSC pods contained "naturally
roasted soluble and microground Arabica coffee." What the packaging didn't explain is that "soluble coffee" is
"instant coffee," and that the amount of coffee grounds in the pods was trivial (added primarily to dust the chunks
of instant coffee).

Defendants hoped consumers wouldn't notice the difference, but that expectation did not come to pass. Within
days after the launch of the GSC pods, complaints started rolling in with one retailer calling GSC the "poorest
performing introductory product that we have had in our 12 year history." Several angry consumers subsequently
filed class action lawsuits charging defendants with violations of state consumer protection laws prohibiting
deceptive advertising and marketing.

The district court denied class certification on the ground, among others, that there were no questions common
to the class, as required under Rule 23(a)(2) of the Federal Rules of Civil Procedure to maintain a class action
in federal court. The 10th Circuit disagreed, ruling that whether the GSC packaging was likely to mislead a reasonable
consumer was a question common to the claims of all putative class members. In support, the 10th Circuit referenced
three expert surveys in the record – all of which concluded that few consumers understood the true nature of the
GSC product. One survey, conducted by the plaintiffs' expert, found that only 14% of respondents understood that
the GSC product contained primarily instant coffee. A second survey by defendants' expert found that only one
out of 151 respondents equated "soluble coffee" with "instant coffee." Finally, a third expert found that nearly
all GSC pod purchasers expected the product to yield filtered ground coffee, and almost none of those purchasers
expected the product to contain instant coffee.

The district also denied class certification on the ground that individual issues related to causation would
predominate over common questions of law or fact, in violation of Federal Rule 23(b)(3). Again, the 10th Circuit
reversed, observing that "[e]very consumer fraud case involves individual elements of reliance or causation."
Instead, the 10th Circuit instructed that the appropriate initial inquiry is whether class damages can be accurately
measured. On this point, the Court cited the report of plaintiffs' expert suggesting that "damages might be computed
by taking the difference between the actual value of the package [plaintiffs] purchased (instant coffee) and the
inflated price [plaintiffs] paid (thinking the pods contained real coffee grounds)."

Seinfeld: Kramer Sues Java World

Based on its analysis, the 10th Circuit vacated the lower court's denial of class certification and remanded
for further proceedings consistent with its opinion. Clearly, trouble is brewing for the defendants.

Rather than seeking commentary on the Court's legal analysis, we're actually curious, how many of you are coffee
drinkers? For those who are, how many of you were "victims" of the GSC pods masquerading as fresh coffee grounds?

This article was originally published in
BullsEye, a newsletter
distributed by IMS ExpertServices™. IMS Expert
Services is the premier expert witness search firm
in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this
and other legal industry BullsEye
publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us
at 877-838-8464 or visit our website.